McPherson v. Richards

Sam C. Cook, P. J., delivered the opinion of the court. Certain resident citizens and taxpayers of Quitman county exhibited their bill of complaint in the chancery court against Tom Richards, the original lessee of certain parts of a sixteenth section in said county, and his grantees and lessees of the north one-half of section 16, township 28, range 1 west. The bill alleged that the lease was void and prayed a cancellation of said lease and an accounting. We will not attempt to trace the byways of this record, but will endeavor to settle the vital principles for the guidance of the trial court. The original lease of the land in question discloses that the trustees of the toivnship authorized a lease for a term of years and the board undertook to lease the sixteenth section for a term of seven years, conditioned upon the lessee making certain improvements on said land. At the same time the board also leased for a term of fifteen years, to begin at the expiration of the seven-year lease, providing that the lessee should have the land for a further term of fifteen years at an annual rental of three hundred twelve dollars and fifty cents. It will be observed that the board of supervisors thus contracted in effect to lease the sixteenth section land for a term of twenty-two years. After the expiration of the seven-year lease, made in consideration of certain improvements (which were not fully made), the board attempted to ratify the fifteen-year lease and made an order, without getting the consent of the heads of families, to make the lease extend for fifteen years from the expiration of the seven years, embracing a provision [226] in the new order for certain improvements not made during the seven-year lease. The law bearing on the power to lease is embodied in an act of the legislature. We here copy the act, omitting the title: “That section 4149 of the Annotated Code of 1892, be amended so as to read as follows: 4149. Lands tobe Leased. None of such lands shall ever be sold, but they shall be leased; those not in a city, town or village, for a term not exceeding fifteen years and those in a city, town or village, for a term not exceeding twenty-five years, on condition of the payment annually of the rent [reserved. But the board of supervisors in the case of uncleared lands may lease them for not exceeding seven years in consideration of the clearing and improvement thereof, and with condition that the lessee shall have the preference to lease the same for another term of fifteen years or less, at an annual rental to be agreed upon as in other cases of leasing.” See chapter 40, Laws 1898. In this case it clearly appears that the lessees did not perform their contract by clearing the land and building houses as agreed in the first lease. They did not make the improvements they contracted to make, and therefore they are not entitled to a preference in the leasehold. The original lease does not conform to the statute; the statute merely gives a preference to the lessee, while the lease here fixes in advance the annual rental. The statute contemplates that the second lease shall be made after the improvements are made under first lease, or after its expiration if they are not made as agreed. We think that an accounting should be had between the lessees and the board of supervisors. The lessees should be credited with the value of the improvements made in accordance with the contract and debited with the value of the improvements not made. In other words, the county is entitled to get the value of the consideration on which the seven-year lease was made. The judgment will be reversed, and the cause remanded. Reversed and remahded.